Court File and Parties

Ontario Court of Justice

Date: 2018-01-10

Court File No.: Toronto Region 4811-998-17-15001665-00

Between:

Her Majesty the Queen

— and —

Salamat Asrula

Before: Justice Heather Pringle

Heard: December 20, 2017

Reasons for Judgment Released: January 10, 2018

Counsel

Helen How — counsel for the Crown

Salamat Asrula — on his own behalf

Judgment

PRINGLE J.:

Facts and Crown's Case

[1] Salamat Asrula was tried on one count of Cause Disturbance, contrary to s. 175(1)(a) of the Criminal Code. The allegations against him are, in sum, that he was loudly shouting profane comments to women who walked by him in Trinity Bellwoods Park. None of these women testified. However, another woman, Ms. Miranda, observed this alleged behaviour and telephoned police. She and one officer who responded to her call testified for the Crown. The defendant testified in his own defence and denied the allegations.

[2] This is a case where application of the principles from R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) have led me to conclude that the defendant must be acquitted. The defence evidence has raised a reasonable doubt. I also have a reasonable doubt arising from my assessment of the reliability of the Crown's central witness. Finally, even if the Crown's evidence had been made out, factually, as having occurred beyond a reasonable doubt, my application of those facts to the legal components of Cause Disturbance would still lead to an acquittal. These are my reasons.

The Evidence

[3] On everyone's version of events, it was an unseasonably warm February day. The complainant and her friend decided to enjoy it while drinking tea and chatting in Trinity Bellwoods Park. Sitting on a park bench, Ms. Miranda observed the defendant sitting at a picnic table about ten feet away, facing a pedestrian path. He was drinking alcohol from a tall can, which he kept concealed in his jacket. The defendant appeared to be chatting with people who passed by him while walking along that pedestrian path.

[4] First, Ms. Miranda thought, these brief conversations were jovial in nature. However, the defendant began muttering and, after 15 or 20 minutes, seemed to be getting agitated with passers-by. He addressed only one male, with the rest of the involved passers-by being women.

[5] It was after those 15 or 20 minutes, the complainant testified, that she observed the defendant beginning to act "agitated" with female passers-by. He remained seated at the picnic table, but seemed to be saying things to women. Because his behaviour was primarily directed towards women, the complainant's "spidey sense" was triggered and she decided to listen closer. After one woman passed him by without responding to his comment that she was pretty and should smile, Ms. Miranda heard him say "bitch" under his breath.

[6] The complainant could not recount precisely what she heard the defendant saying in full. However his voice became loud enough, she testified, that she could hear what he was saying. At trial, she recalled hearing the words "fight" and "bumbaclot" yelled, as well as the misogynist term "bitch".

[7] None of these female passers-by were called as witnesses. However, Ms. Miranda described their various reactions as they encountered the accused. They looked uncomfortable, turning their heads to the side and directing their gaze down to avoid eye contact with him. At least one stepped off the path to, in the complainant's opinion, avoid the defendant because she had realized he was not of "sound mind". The defendant then shouted "bumbaclot". In Ms. Miranda's opinion, all these steps – adverting eyes, stepping slightly off the path, making eye contact with her – were steps taken to avoid confrontation with the accused. However, each individual interaction with the accused was temporally brief, since each woman continued to walk past him and down the path unimpeded. There was no direct evidence of any impact on these women or their behaviour, except for Ms. Miranda's opinion that the encounter must have caused them some emotional discomfort.

[8] Approximately five to ten people had walked by the accused after his behaviour began to "escalate". Ms. Miranda said both that she decided to call police after this occurred to a third woman, and that the yelling went on for 10 to 15 minutes before she decided to call police. However, by the time Ms. Miranda called police, the misbehaviour seemed to have stopped without outside interference. The defendant had left the picnic table, walked over to the recreation centre, and was chatting with an apparent film crew setting up near there.

[9] Ms. Miranda monitored him from a distance while she called police, providing a description of the accused. Officers responded quickly and identified the defendant by a distinctive jacket he wore. One officer approached the accused and engaged him in conversation. Ms. Miranda approached the other police officer and identified herself as the person who called police. She and that officer were about 20 or 25 feet away from the defendant. The defendant, upon seeing her speaking with that second officer, again began to yell loudly. The yelling was loud enough that Ms. Miranda could hear it, from where she was standing with police. She drew the officer's attention to this yelling, stating words to the effect of "this is what he was doing".

[10] Ms. Miranda was not cross-examined by the self-represented accused. She was the sole civilian Crown witness. When Ms. Miranda was asked for the impact of this event on her, she stated that she felt terrible for the women this had occurred to. It had been a beautiful day in the park, and to have this happen was "so unfortunate" and "very disappointing". She had seen this type of thing in the park at night, but not during the day.

[11] PC Chris Meuleman was the second and last Crown witness. He arrived on scene, in response to the radio call about a man drinking and yelling in the park, at about 3:15 p.m. Upon arriving, he spoke to Ms. Miranda and, based on her information, arrested the defendant for Cause Disturbance. He observed the defendant had an open can of beer, which had been emptied, and four unopened beer cans in a bag.

[12] PC Meuleman was asked, more than once, if he personally observed the defendant yelling at anyone in the park. He responded, each time, that he did not recall the defendant yelling at people in the park.

[13] The defendant testified in his own defence. He was 52 years old and lived with his wife and children in Toronto. He advised that over 20 years prior, he had been convicted of a domestic assault and received time served and probation.

[14] The defendant acknowledged being the man in Trinity Bellwoods Park that day, but denied yelling and screaming at anyone. He denied using the words bumbaclot, fight, and bitch. On his version, he was also enjoying the sunny warm day drinking beer in Trinity Bellwoods. He was sitting by a bunch of men building a sound stage of some kind. As people went by, he would say hello to these random people. Everyone he spoke to seemed neighbourly and friendly. All appeared to be fine until police approached him, left to speak to Ms. Miranda, and then returned to insinuate he was some kind of sexual predator. Contrary to Ms. Miranda's testimony, the defendant denied shouting and yelling when he saw Ms. Miranda speaking with police.

[15] In cross-examination, the defendant claimed Ms. Miranda and he knew each other from a prior encounter in the park, and that the previous summer, he got into an argument with a male friend of hers. He admitted that he and Ms. Miranda did not have a personal problem as between themselves. The defendant, who did not cross-examine Ms. Miranda at all, did not put any suggestions to her about this past encounter.

[16] The defendant underscored that the police, in his view, did not conduct an even-handed investigation. They spoke to Ms. Miranda but no one else. They did not ask for his side of the story, or speak to any of the people he was talking with near the recreation centre.

[17] Although it did not form part of the formal evidence the defendant gave, I should add that the defendant's conduct during parts of the Crown case were disruptive. I add this because the Crown invited me to rely on this as corroboration of the complainant's testimony.

Analysis of the Evidence to W.D. Principles

[18] In applying W.D. to the defendant's evidence, I am unable to accept it wholesale as true, but it has raised a reasonable doubt in my mind. He was adamant and consistent in his denials of any yelling or shouting. His denial of using foul and offensive language rang as plausible to me. The defendant admitted to conduct that did not necessarily help his cause, such as drinking beer illegally in the park. He offered the fact of his criminal conviction in chief, which was a little surprising coming from a self-represented accused. In short, I found the defendant was not attempting to paint himself in the best possible light, but that he was frankly acknowledging negative elements to his background and to his behaviour that day. This factor also assisted to raise a doubt.

[19] The defendant was, while testifying, visibly upset that police chose to speak to no one but the complainant in conducting their investigation. This, too, assisted in raising a reasonable doubt in my mind. It was consistent with having an innocent state of mind and nothing to hide. In my view, the defendant's upset was genuine and stemmed from his honest belief that a thorough investigation should have exonerated him.

[20] In considering the defence evidence as a whole, these factors in combination raised a reasonable doubt and I would be obliged to acquit the defendant on this basis alone. Had I rejected the defendant's testimony entirely, however, I still would have acquitted him of this offence. I was very troubled by what I found to be a material inconsistency between the evidence of the complainant and the evidence of the arresting officer. More specifically, Ms. Miranda testified that while the accused was with one police officer, and she with another, the accused began yelling again. This yelling was in response to seeing her engage with police, and was loud enough for her to hear, from 20 to 25 feet away. Ms. Miranda testified that she informed the police officer, standing next to her, that the defendant was yelling again, as he had before.

[21] Although Ms. Miranda did not say which police officer she said this to, PC Meuleman testified that he spoke to Ms. Miranda shortly after arriving on scene. I thus infer that he was the police officer standing with Ms. Miranda at the relevant time. Alternatively, he would have been the officer standing next to the accused at the relevant time. Either way, he was in a position to hear this alleged yelling. But when asked, he did not recall hearing the defendant yelling in his presence. It is not a stretch to conclude that, had PC Meuleman observed the defendant yelling at people in the park he would have recalled it, since the whole purpose of his attendance was to investigate a man yelling at people in the park. Certainly, had Ms. Miranda been standing with Officer Meuleman and pointed out the defendant was yelling just as he had before, PC Meuleman would have recalled it given the nature of the radio call.

[22] I find PC Meuleman did not recall the yelling happening because it did not happen, and this contradiction caused me to have concerns about the reliability of the complainant's testimony as a whole. The nature of the contradiction was important. It was a material and significant contradiction. It went to the heart of whether the defendant continued to engage in the same type of impugned conduct, loudly yelling, after police arrived.

[23] Other concerns that impacted on my reliability assessment included Ms. Miranda's allegation that from a distance she could hear the defendant say the word "bitch" to someone under his breath. I do not understand how, from her distance, she could hear the word "bitch" spoken under someone's breath. At times the complainant characterized the accused's agitated speech as including 'muttering". I find at times she was surmising as to what was said, based on her perception of the reactions of passers-by and the fact that most of them were women. Despite 10 or 15 minutes of alleged yelling, the complainant could only recall hearing three specific words – fight, bitch, and bumbaclot.

[24] Crown counsel submitted the complainant's testimony was corroborated by the defendant's behaviour in court. Respectfully, I cannot accept that submission as bearing legal or practical weight. I cannot possibly draw conclusions about the defendant's behaviour in a public park almost one year ago by holding it against his behaviour while defending himself against a criminal allegation at trial. The two situations are completely at odds with each other, and it would be impermissible propensity reasoning to say that because he acted one way in situation B, that means he acted similarly one year ago in situation A.

[25] Moreover, basing any findings on defendant's demeanour in court, while that person is not testifying, is limited territory and for good reason. I find, based on our Court of Appeal's decision of R. v. Owens (1986), 33 CCC (3d) 275 as well as R. v. Norman (1993), 16 O.R. (3d) 295, that for a trial judge to substantively use the demeanour of an accused, while that accused is present in court and not testifying, should be limited to rare circumstances such as where the accused has placed their general demeanour at issue and thus made general demeanour a relevant issue. That is not the situation in the case at bar.

[26] I make no findings, one way or the other, about whether the complainant had a motive to fabricate. My concerns, frankly, relate less to her credibility and more to her reliability. It may therefore be academic to say so, but I reject the notion that a negative inference should be drawn against the defendant's credibility for failing to put this suggestion to Ms. Miranda. The first line of remedy for an infringement of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) is, in my view, to request that the witness be re-called, and the missing suggestions put to that witness for her response. That did not happen here. Drawing a negative inference as to credibility is a Browne v. Dunn remedy of last resort, even where the accused is represented by counsel cognizant of the legal principle.

The Legal Components of Causing a Disturbance

[27] Finally, even if I had accepted the complainant's evidence wholesale, without reservation, the evidence in this case fell short of the legal requirements to prove the criminal offence of Cause Disturbance. To prove this offence, the Crown must show the accused committed one of the enumerated acts – screaming, shouting, swearing, or using insulting or obscene language. But as per the Supreme Court decision of R. v. Lohnes, [1992] 1 S.C.R. 167, at p. 181 (para. 18), the Crown must also prove that this conduct caused "an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public."

[28] Lohnes was considered and applied by our Court of Appeal in R. v. Swinkels, 2010 ONCA 742, 103 O.R. (3d) 736. In that case, the appellant had been part of a crowd of people outside a bar at closing time. Police driving by heard foul language and stopped to investigate. When they did, the appellant approached them, spewing more obscene language and also, to put it colloquially, "shooting the finger". The crowd gathered around to watch and the appellant was arrested.

[29] The Court of Appeal overturned the conviction and entered an acquittal (Lang J.A. dissenting). On behalf of the majority, LaForme J.A. held at paras. 28-29:

I agree with the holding in Osbourne that a 'public disturbance' requires more than a crowd observing – or even shouting anti-police sentiments at - police officers in the course of arrest. In the words of the trial judge in that case, at para. 21:

[T]he law is clear that yelling and swearing in a public place is not in itself a criminal offence. Equally, the existence of emotional disturbance, such as Constable Correa's belief that the defendant's language was vulgar, aggressive and inappropriate, is insufficient to establish a disturbance within section 175(1)(a).

This is consistent with the appellate jurisprudence: in order to satisfy the actus reus of causing a public disturbance by using obscene language, the offending language must cause an externally manifested disturbance. That is not the evidence here. In the words of the only two witnesses, the 'large group of onlookers' congregated only after the police had begun to effect the arrest.

[30] More recently, the Court of Appeal in R. v. Kukemueller (2014), 2014 ONCA 295, 119 O.R. (3d) 741, overturned a conviction for Causing a Disturbance. The appellant had been yelling and swearing at police during the course of an investigation. More particularly, the appellant let loose with a string of profanities after police arrested first his girlfriend and then his father. Approximately twenty-two people were present when this happened. The trial judge found a disturbance, in law, had occurred because the appellant's yelling and swearing raised tension amongst the crowd and made a volatile situation worse.

[31] Our Court of Appeal disagreed, and reiterated that the legal concept of a disturbance, as criminalized in s. 175(1)(a), was not met where the enumerated act merely caused someone emotional upset or annoyance. At paragraphs 17-21, Sharpe J.A. thoroughly reviewed the applicable law which is binding upon me and determinative of the result in the case at bar:

There is no doubt that by yelling and swearing at the police, the appellant committed one of the enumerated acts. The question is whether those acts "cause[d] a disturbance in or near a public place".

In Lohnes, McLachlin J. reviewed the jurisprudence as it stood at the time as to the meaning of "disturbance". She identified two lines of authority. Some cases adopted what she described at p. 173 as "an expansive approach" in which the offence was made out where the specified conduct "disturbs or could reasonably be inferred as disturbing another person". Other courts took a more limited approach and rejected the proposition that the "mere disturbing of the peace or tranquility of one person's mind" was sufficient.

McLachlin J. rejected the expansive approach and concluded, at p. 177, that for the second element of a disturbance to be made out, "the enumerated conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question". She added, at p. 178 that disturbance in this context "involves more than mere mental or emotional annoyance or disruption" and, at pp. 178-9, that the aim of the offence is "not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public's normal activities" and interference "with the ordinary use of a place".

At pp. 180-1, McLachlin J. explained that the more restrictive and concrete approach, based upon an interference with the use of a public place rather than mental or emotional upset, provides a sound basis upon which to achieve a "balance between the individual interest in liberty and the public interest in going about its affairs in peace and tranquility."

In Lohnes, the appellant had shouted obscenities at his neighbour from his own veranda. The Supreme Court held that even if this caused emotional disturbance or annoyance to the neighbour, it did not constitute a "disturbance in or near a public place" because upset does not amount to interference with the ordinary and customary use of the premises by the public.

[32] In the case at bar, the complainant testified she felt terrible for the female passers-by. To have this happen, she said, was "very disappointing" and "so unfortunate" particularly given recent events involving politics and women. The complainant's sympathy and empathy for these women, however, does not make out a 'disturbance' in law sufficient to ground a conviction on.

[33] Neither did I find the complainant's opinion as to the impact on these women to be admissible evidence of a "disturbance" in law. The complainant's description of their reactions – casting their eyes downward, making eye contact with her, in one case stepping a bit off the path – was only consistent with brief emotional upset at the highest and consistent with other interpretations. This conclusion may have been different, had I heard from any of these women as to what the defendant said to them and the resulting impact, if any, on their use of the park that day, but I did not. On the evidence I heard, these women were walking through the park when they passed the defendant, who was using foul and aggressive language, and that after this encounter they kept on doing exactly what they had been doing before – walking through the park.

[34] I therefore find that even if the Crown had proven the defendant shouted foul language towards these women, there was no evidence of a disturbance within the meaning of s. 175(1)(a). I would acquit the defendant on this final basis, as well.

[35] The defendant is therefore acquitted of the charge of Causing a Disturbance.

Released: January 10, 2018

Signed: Justice Heather Pringle